Well at the very least, it would put this issue to rest once and for all. As ridiculous as Aereo's business model is, I think they need to win this one for everyone, although it will certainly be an uphill battle.

I'd love to see them win their case at the Supreme Court and be able to expand their services without the legal hassles they're currently facing. It might also force the media companies to actually -- *gasp* -- compete!

Well at the very least, it would put this issue to rest once and for all. As ridiculous as Aereo's business model is, I think they need to win this one for everyone, although it will certainly be an uphill battle.

I won't argue that Aereo's business model is ridiculous. I will argue that what's even more ridiculous is that such a business model is even necessary. Aereo manages to meet the letter of the twisted morass that is copyright law. The fact that Big Content failed to foresee & preclude such an option is certainly cause for more than a hint of Schadenfreude.

There are strong parallels to illegal downlading of TV shows. Broadcasters however continue to make the same mistakes. The consumer demands to watch the shows they like, at a time convenient to them and are not going to pay through the nose for that simple luxury. If you are unable to supply this convenience, someone else will.

Additionally a lot of companies have tried to meet this demand in the wrong way, "How can we make money off people wanting to download content" (apple/fox?) vs "How can we deliever a seamless at home content delivery experience for our customers?" (netflix?).

Good on Aereo, they saw a need, a loophole in the law, and they filled it at considerable effort on their own part.

I would love to see the TV networks take their broadcast off the air even if that means the end of Aereo. The FCC will then be able to make them sell their radio spectrum to someone who will do something more useful to society with it like more LTE bandwidth.

Maybe the Supreme Court will even realize that the necessity of using thousands of antennas is stupid and do something to fix copyright law to remove that need.

I can hope at least.

One can only hope, but I seriously doubt it. One of the problems I have with the SCOTUS system is that appointments are for life. While that may have some benefits (personally, I haven't really researched enough about the SCOTUS to form an opinion on any possible benefits), it does cause a problem when it comes to adapting law to new technology. In general, older people have a harder time adapting to change. And if you've got a lifetime appointment, the likelihood that the justices will understand the nuances of ever changing technology and how they apply to law diminishes as they get older. Many current laws regarding copyright still deal with physical recordings. As things are progressing towards downloadable, digital copies instead of CDs, DVDs, and Blu-rays, it's up to these justices to make the distinction.

And it's not just copyright law. It's even stuff like the Fourth Amendment and search and seizure laws. Parts of the law protect the contents of mail if it hasn't been physically opened. But nowadays, e-mail doesn't have a physical barrier in the form of an envelope. So what exactly does "opening" an e-mail mean when it comes to a search and seizure warrant?

And it's not just copyright law. It's even stuff like the Fourth Amendment and search and seizure laws. Parts of the law protect the contents of mail if it hasn't been physically opened. But nowadays, e-mail doesn't have a physical barrier in the form of an envelope. So what exactly does "opening" an e-mail mean when it comes to a search and seizure warrant?

I think that the standard is that email is like a postcard, if you want it to be like mail you need to encrypt it.

"TV executives are livid over the Aereo wins and have even made outlandish claims that they may go off the air if Aereo keeps winning"

Bye!

Yeah, like that's really going to happen.

Big TV Exec: "Instead of getting licensing fees, I'll just go off the air and forgo all my advertising revenue too! That'll scare those bastards into submission!" /sarcasm

Most people don't get their network tv via OTA broadcasts....

Right. They get them over cable or satellite, and cable and satellite companies (MVPDs) pay retransmission consent fees to (technically, local) broadcasters for their content.

OT: I want Aereo to win simply because nothing will motivate Congress to change the absurdly bad Copyright Act more than broadcast networks threatening to go off the air. What will Senators (average age: 63) watch if NCIS is off the air?

I'm really happy that Aereo is taking this all the way to the top (though they didn't have much choice in the matter). New technologies and ideas are so important to society, it's not right for incumbents to arbitrarily decide what should and should not be allowed into the market. The biggest question is if SCOTUS will side with consumers or big business. I'm not sure I know how this will turn out...

A company called FilmOn (formerly known as “Barry- Driller” or “Aereokiller”) purports to offer technology "analogous" to Aereo’s. FilmOn has been enjoined by district courts in California and Washington, D.C., and has been held in contempt of court by the latter for commencing operations in Boston in spite of that injunction.

FilmOn and the TV companies apparently disagreed about how close the technology was.

Instead, the court noted, without resolving the issue, that defendant FilmOn described its system as “technologically analogous” to Aereo’s, a characterization that “Plain- tiffs dispute[d]” by arguing that “there are a number of elements that are present in the Aereo system that Defendants have not identified as part of their system.”

OT: I want Aereo to win simply because nothing will motivate Congress to change the absurdly bad Copyright Act more than broadcast networks threatening to go off the air. What will Senators (average age: 63) watch if NCIS is off the air?

I would love to see the TV networks take their broadcast off the air even if that means the end of Aereo. The FCC will then be able to make them sell their radio spectrum to someone who will do something more useful to society with it like more LTE bandwidth.

Maybe the Supreme Court will even realize that the necessity of using thousands of antennas is stupid and do something to fix copyright law to remove that need.

I can hope at least.

One can only hope, but I seriously doubt it. One of the problems I have with the SCOTUS system is that appointments are for life. While that may have some benefits (personally, I haven't really researched enough about the SCOTUS to form an opinion on any possible benefits), it does cause a problem when it comes to adapting law to new technology. In general, older people have a harder time adapting to change. And if you've got a lifetime appointment, the likelihood that the justices will understand the nuances of ever changing technology and how they apply to law diminishes as they get older. Many current laws regarding copyright still deal with physical recordings. As things are progressing towards downloadable, digital copies instead of CDs, DVDs, and Blu-rays, it's up to these justices to make the distinction.

And it's not just copyright law. It's even stuff like the Fourth Amendment and search and seizure laws. Parts of the law protect the contents of mail if it hasn't been physically opened. But nowadays, e-mail doesn't have a physical barrier in the form of an envelope. So what exactly does "opening" an e-mail mean when it comes to a search and seizure warrant?

First off as much as I disagree with some justices interpretations I wouldn't call them uninformed or stupid. Sure SCOTUS justices tend to be older but they have many tools at their disposal to investigate these matters and the full capacity to understand what it is aero is doing. Honestly what aero is doing is simple, convoluted reasoning for why but the process itself is very simple.

Secondly as has been touched on SCOTUS does not change laws they interpret them and guard against laws in breach of constitutionally secured rights. To actually change law to protect online interactions as private requires legislation not litigation. The law is actually pretty clear with the third party doctrine, should it be changed given that e-mail and other communication is more and more often stored in the cloud rather than on home computers sure. But until it is it's pretty much open season on your g-mail. Likewise Aero really should not be able to do what it is doing. It is absolutely against the spirit of copyright law. It is also pretty unquestionably following the letter of the law.

"TV executives are livid over the Aereo wins and have even made outlandish claims that they may go off the air if Aereo keeps winning"

Bye!

Yeah, like that's really going to happen.

Big TV Exec: "Instead of getting licensing fees, I'll just go off the air and forgo all my advertising revenue too! That'll scare those bastards into submission!" /sarcasm

Most people don't get their network tv via OTA broadcasts....

Last I checked figures had about 80% of the Tv viewing public using cable/satllite.

That still leaves a hefty population that watch purely ad subsidized OTA television. Since all of the broadcast stations are shareholder backed/owned. None of them are going to simply go off-air and lose all of that ad revenue (ad revenue is based on eyeballs). So, keep dreaming.

More importantly, if OTA does go away, that leaves cable/satellite as 100% of television viewership and opens up a whole new can of worms for regulatory power within the FCC (many broadcasters are tied to cable companies NBC/Universal/Comcast as an example).

... One of the problems I have with the SCOTUS system is that appointments are for life. While that may have some benefits (personally, I haven't really researched enough about the SCOTUS to form an opinion on any possible benefits), it does cause a problem when it comes to adapting law to new technology. In general, older people have a harder time adapting to change. And if you've got a lifetime appointment, the likelihood that the justices will understand the nuances of ever changing technology and how they apply to law diminishes as they get older. Many current laws regarding copyright still deal with physical recordings. As things are progressing towards downloadable, digital copies instead of CDs, DVDs, and Blu-rays, it's up to these justices to make the distinction.

The primary reason the Constitution set up Article III Judges as having life tenure (and preventing their salary from ever decreasing) was to protect the Judiciary from the Legislative and Executive branches. If Federal Judges had a malleable term of service, or if their salaries could be reduced, the Judiciary would be subject to manipulation and retribution from the other branches of Government. Does life tenure seem arbitrary? Today, maybe, but in the late 1700s I bet it made plenty of sense. Moreover, the law is designed to move slowly, to be resistant to the whims and majoritarian tensions of politics.

I wouldn't be so concerned that the Justices won't be able to understand modern technology. At the very least, they all have four clerks, which generally change each session, who are the cream of the crop of young attorneys from across the nation. Any questions a Justice may have about the modern world can be easily answered by the clerks.

Finally, you note that current laws deal with physical recordings... that isn't an oversight which is the Supreme Court's responsibility to fix. Reforming Copyright Law is a duty of Congress, even though I don't think anyone expects Congress to do anything (good) in that area anytime soon.

"TV executives are livid over the Aereo wins and have even made outlandish claims that they may go off the air if Aereo keeps winning"

Bye!

Yeah, like that's really going to happen.

Big TV Exec: "Instead of getting licensing fees, I'll just go off the air and forgo all my advertising revenue too! That'll scare those bastards into submission!" /sarcasm

Most people don't get their network tv via OTA broadcasts....

Last I checked figures had about 80% of the Tv viewing public using cable/satllite.

That still leaves a hefty population that watch purely ad subsidized OTA television. Since all of the broadcast stations are shareholder backed/owned. None of them are going to simply go off-air and lose all of that ad revenue (ad revenue is based on eyeballs). So, keep dreaming.

More importantly, if OTA does go away, that leaves cable/satellite as 100% of television viewership and opens up a whole new can of worms for regulatory power within the FCC (many broadcasters are tied to cable companies NBC/Universal/Comcast as an example).

Isn't cable tv essentially ad subsidized anymore as well (along with subs i know)? My OTA tv is limited in its offerings and I have to sit through ads periodically during the show, but for cable don't I pay for that privilege along with stretching what should be a 40 minute show into 2 hrs just to fit all those ads?

That being said, I welcome any one who can come in and create new programming outside of these confines (Netflix, Amazon, Xbox) because while its not strong competition at the moment, it has the potential to be what iTunes is to the music industry now, the driving force that consumers gravitate to. And that can't be a bad thing, one would suppose.

"TV executives are livid over the Aereo wins and have even made outlandish claims that they may go off the air if Aereo keeps winning"

Bye!

Yeah, like that's really going to happen.

Big TV Exec: "Instead of getting licensing fees, I'll just go off the air and forgo all my advertising revenue too! That'll scare those bastards into submission!" /sarcasm

Most people don't get their network tv via OTA broadcasts....

Last I checked figures had about 80% of the Tv viewing public using cable/satllite.

That still leaves a hefty population that watch purely ad subsidized OTA television. Since all of the broadcast stations are shareholder backed/owned. None of them are going to simply go off-air and lose all of that ad revenue (ad revenue is based on eyeballs). So, keep dreaming.

More importantly, if OTA does go away, that leaves cable/satellite as 100% of television viewership and opens up a whole new can of worms for regulatory power within the FCC (many broadcasters are tied to cable companies NBC/Universal/Comcast as an example).

Isn't cable tv essentially ad subsidized anymore as well (along with subs i know)? My OTA tv is limited in its offerings and I have to sit through ads periodically during the show, but for cable don't I pay for that privilege along with stretching what should be a 40 minute show into 2 hrs just to fit all those ads?

That being said, I welcome any one who can come in and create new programming outside of these confines (Netflix, Amazon, Xbox) because while its not strong competition at the moment, it has the potential to be what iTunes is to the music industry now, the driving force that consumers gravitate to. And that can't be a bad thing, one would suppose.

That doesn't change the fact that retransmission fees are set in part because those cable companies replace televised ads with ads of their own. More importantly, that removes a large number of viewers in one fell swoop, meaning overall less ad revenue for former broadcasters. People who stick with OTA are either doing so to avoid cable/satellite fees or because they live in areas not serviced by cable (or where satellite wouldn't work due to weather).

Anyone who thinks broadcasters are just going to take their marbles and go home is dreaming.

OT: I want Aereo to win simply because nothing will motivate Congress to change the absurdly bad Copyright Act more than broadcast networks threatening to go off the air. What will Senators (average age: 63) watch if NCIS is off the air?

They'll watch NCIS on cable, like they do now?

I was being flippant with the NCIS joke, but there is actually a broader point here. Both Congress and the FCC absolutely love broadcast TV, because Congress and the FCC are absolutely obsessed with localism. The FCC in particular regulates almost exclusively with local broadcast interests in mind. For example, as I mentioned above, MVPDs pay retransmission consent fees to local broadcasters, not to the national networks.

To use another example, MVPDs are also required to retransmit only the local station's version of a national broadcaster-produced program (so-called syndicated exclusivity or syndex) rather than another broadcast network or a national feed. That is because the FCC is concerned that most of the content the cable companies/consumers want--i.e., NCIS, which is the #1 show on TV because people are terrible--is produced by the national networks. If MVPDs could get their content direct from national broadcasters, the local broadcasters would be squeezed out of the market. And that would hurt localism, which Congress and the FCC just can't have.

The localism interest is why an Aereo win would spur congressional action--Aereo doesn't have to pay retransmission consent fees to local broadcasters, and those fees are the primary tool local broadcasters use to get revenue these days. To sound like a broken record: Aereo hurts localism, and the government will have none of that.

OT: I want Aereo to win simply because nothing will motivate Congress to change the absurdly bad Copyright Act more than broadcast networks threatening to go off the air. What will Senators (average age: 63) watch if NCIS is off the air?

They'll watch NCIS on cable, like they do now?

I was being flippant with the NCIS joke, but there is actually a broader point here. Both Congress and the FCC absolutely love broadcast TV, because Congress and the FCC are absolutely obsessed with localism. The FCC in particular regulates almost exclusively with local broadcast interests in mind. For example, as I mentioned above, MVPDs pay retransmission consent fees to local broadcasters, not to the national networks.

To use another example, MVPDs are also required to retransmit only the local station's version of a national broadcaster-produced program (so-called syndicated exclusivity or syndex) rather than another broadcast network or a national feed. That is because the FCC is concerned that most of the content the cable companies want--i.e., NCIS, which is the #1 show on TV because people are terrible--is produced by the national networks. If MVPDs could get their content direct from national broadcasters, the local broadcasters would be squeezed out of the market. And that would hurt localism, which Congress and the FCC just can't have.

The localism interest is why an Aereo win would spur congressional action--Aereo doesn't have to pay retransmission consent fees to local broadcasters, and those fees which are the primary tool local broadcasters use to get revenue these days. To sound like a broken record: Aereo hurts localism, and the government will have none of that.

Indeed we can't forget the local affiliates and community broadcasters. Frankly, it's high time Congress were forced to do something about the horribly broken copyright system we have in place.

This is no different than making Distant Networks available to DBS customers so they can watch broadcast networks no local to them. The decision then is no different than what the decision should be now, unless they remove all former regulation governing Distant Networking rules.

Personally, I say remove the restraints that keeps DirecTV (example) from offering everyone the ABC/NBC/CBS/Fox NYC/LA networks instead of having to provide local networks to 500 different markets. The current rules make it difficult for DBS providers to be efficient about spectrum use.

If the courts rule in favor of Aereo, then the the rules governing Distant Networks need to be removed (to be fair), and this would mean even stronger competition from the DBS providers in competing with cable operators and OTA sources.

If the Broadcast networks lose at trial at the supreme court level they won't leave for cable entirely, they will just lobby congress to get the laws changed back into their favor and in the meantime probably move their expensive to produce shows to their cable channels and fill the broadcast channels up with even more reality dreck. They won't give up their spectrum and they can outspend Aereo in lobbying efforts to get what they want.

One thing I don't understand is why broadcasters don't want cable and other media to transmit their content. Since they get paid according to how big an audience they have, why do they charge for the privilege? They actually should be GIVING other media something in order to encourage them to reach more people; increase their audience. That would allow them to increase their revenue from their main source: advertisers.

One thing I don't understand is why broadcasters don't want cable and other media to transmit their content. Since they get paid according to how big an audience they have, why do they charge for the privilege? They actually should be GIVING other media something in order to encourage them to reach more people; increase their audience. That would allow them to increase their revenue from their main source: advertisers.

The answer to the former question is easy: because they can. Federal law grants broadcasters a property-right-like interest in their OTA transmissions, so MVPDs can't retransmit without the broadcasters' agreement. The property right coupled with their audience is the broadcasters' leverage in negotiations. You are correct in the assumption that networks want bigger audiences, but they also already have substantial audiences that the MVPDs need access to (think about how much flack Time Warner caught when it dropped CBS earlier this year). So, short answer: it's a free revenue stream.

The question of why the broadcasters care about Aereo is trickier. Sure, they care about the retransmission fees they get from MVPDs, but it's not like people are flocking from cable to Aereo. The loss of fees can't hurt them that much, and they may actually gain more marginal viewers (say, people who can't afford cable and who get bad OTA reception--perfect candidates for Aereo). My wholly unsubstantiated guess is that this new technology is just plain scary. The networks don't know what precedent could be set if they allow this to happen--cable companies convincing the Congress or the FCC that competition from Aereo necessitates the removal of retransmission consent, because it puts them at an unfair disadvantage, perhaps?--and they want to stem the tide before anything truly bad happens.

The question of why the broadcasters care about Aereo is trickier. Sure, they care about the retransmission fees they get from MVPDs, but it's not like people are flocking from cable to Aereo. The loss of fees can't hurt them that much, and they may actually gain more marginal viewers (say, people who can't afford cable and who get bad OTA reception--perfect candidates for Aereo).

I think that the broadcasters' fear is that if Aereo wins, their retransmission fees will evaporate as every cable operator who can, will simply duplicate their setup and stop paying. And, fwiw, I think that they're right: if Aereo wins, that's precisely what will happen. I don't think that's a good reason for Aereo to lose the case (since that reason has nothing at all to do with whether or not they're in compliance with the law), but it is good motivation for the broadcasters to try and find some argument that will put Aereo out of business.

The localism interest is why an Aereo win would spur congressional action--Aereo doesn't have to pay retransmission consent fees to local broadcasters, and those fees are the primary tool local broadcasters use to get revenue these days. To sound like a broken record: Aereo hurts localism, and the government will have none of that.

Aereo does, and AFAICT, must, respect localism in order for their business model to fly. Currently, they will only allow you to view/record/space-shift programming from the local area of your billing address. You can't use Aereo to get OTA TV from anywhere in the US, only places in the US where you have an address, and if you want more than one place, you have to have more than account.

The question of why the broadcasters care about Aereo is trickier. Sure, they care about the retransmission fees they get from MVPDs, but it's not like people are flocking from cable to Aereo. The loss of fees can't hurt them that much, and they may actually gain more marginal viewers (say, people who can't afford cable and who get bad OTA reception--perfect candidates for Aereo).

I think that the broadcasters' fear is that if Aereo wins, their retransmission fees will evaporate as every cable operator who can, will simply duplicate their setup and stop paying. And, fwiw, I think that they're right: if Aereo wins, that's precisely what will happen. I don't think that's a good reason for Aereo to lose the case (since that reason has nothing at all to do with whether or not they're in compliance with the law), but it is good motivation for the broadcasters to try and find some argument that will put Aereo out of business.

You mean cable companies will exploit the same loophole Aereo is using, but will transmit it to a set-top box like it's a regular channel? I hadn't though of that. Does that fall within the same legal loophole Aereo is exploiting to deliver it over the Internet?

The localism interest is why an Aereo win would spur congressional action--Aereo doesn't have to pay retransmission consent fees to local broadcasters, and those fees are the primary tool local broadcasters use to get revenue these days. To sound like a broken record: Aereo hurts localism, and the government will have none of that.

Aereo does, and AFAICT, must, respect localism in order for their business model to fly. Currently, they will only allow you to view/record/space-shift programming from the local area of your billing address. You can't use Aereo to get OTA TV from anywhere in the US, only places in the US where you have an address, and if you want more than one place, you have to have more than account.

Right. But they aren't paying local affiliates for the privilege of retransmission, like MVPDs do, so in that sense the local broadcasters are harmed anyway.

Personally, I say remove the restraints that keeps DirecTV (example) from offering everyone the ABC/NBC/CBS/Fox NYC/LA networks instead of having to provide local networks to 500 different markets. The current rules make it difficult for DBS providers to be efficient about spectrum use.

Never happen. If I'm watching the NYC/LA networks, I'm not seeing the ads to reelect my congressional representative.